A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
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JUDICIAL: Includes crop insurance, pesticides, environmental law, and urb & ag issues.
WILLIAMSON FARM, Petitioner, v. DIVERSIFIED CROP INSURANCE SERVICES, a/k/a CGB Diversified Services, Inc., Respondent, No. 5:17-CV-513-D, 2018 WL 1474068 (E.D. N.C. March 26, 2018) involved crop insurance issues and an appeal by an insurance company after an arbitrator awarded farmer over $600,000 based on negligence, breach of fiduciary duty, and fraud. Insurance company moved to vacate arbitrator’s award “because the Federal Crop Insurance Corporation (FCIC) has not determined that [defendant] failed to comply with the insurance policies or FCIC procedures and that such failure resulted in [plaintiff] receiving a payment in an amount less than what was due.” Appellate court observed that “an arbitrator cannot interpret the meaning, scope, or applicability of the policy, but instead must obtain an interpretation of any ambiguous policy provision from the FCIC.” Court considered a number of relevant crop insurance regulations and concluded that “the arbitrator’s award of these extra-contractual damages, and the arbitrator’s interpretation . . . permit[ing] the award, exceeded the scope of the arbitrator’s authority.” Motion to vacate granted.
In GREGORY ARTHUR v. UNITED INDUSTRIES CORPORATION, No. 2:17-cv-06983-CAS(SKx), 2018 WL 1472500 (C.D. Cal. March 23, 2018), plaintiff sued herbicide manufacturer alleging it falsely advertised the actual number of gallons that its herbicide concentrates could produce when “mixed in accordance with defendant’s own instructions.” Defendant moved to dismiss and argued plaintiff failed to show “that a reasonable consumer is likely to be deceived by the ‘makes up to’ representations on the [c]oncentrate bottle labels.” Court reasoned that “reasonable consumers should not be expected to look beyond misleading representations on the front label to discover the truth from ‘the ingredient list in small print on the side of the box.’” Court concluded the instructions on the label “fail to explicitly state which option produces the ‘makes up to’ advertisement on the front label of the Concentrate bottle.” Defendant’s motion to dismiss denied.
WESTERN ORGANIZATION OF RESOURCE COUNCILS, et al., Plaintiffs, v. U.S. BUREAU OF LAND MANAGEMENT, an agency within the U.S. Department of the Interior, et al., Defendants, CV 16-21-GF-BMM, 2018 WL 1475470 (D. Mont. March 26, 2018) concerned a plan by Bureau of Land Management (BLM) to lease federally owned land in Montana and Wyoming. Plaintiffs contended proposed fossil fuel development plans violated the National Environmental Policy Act (NEPA) by “failing to account fully for the damage the coal, oil and gas would do to the environment.” Plaintiffs further alleged that BLM unlawfully failed to consider alternatives that would require measures to reduce methane pollution from oil and gas development. Court agreed with plaintiffs and found that “BLM violated NEPA when it failed to consider options that modified or foreclosed the amount of acreage available for coal development.” Court also concluded that “any new or pending leases of coal, oil, or gas resources in the areas at issue “must undergo comprehensive environmental analyses in compliance with . . . all existing procedural requirements under NEPA and the APA.”
JOHN C. & MAUREEN G. OSBORNE REVOCABLE FAMILY TRUST, et al., Plaintiffs, v. TOWN OF LONG BEACH, INDIANA, et al., Defendants, No. 3:17-cv-227 JD, 2018 WL 1471903 (N.D. Ind. March 26, 2018) involved a zoning board dispute wherein homeowners attempted to build seawalls on their properties abutting a lake. Plaintiffs initially received permits to build the walls, but a new board was elected and the permits were revoked. Plaintiffs filed suit in federal court alleging “substantive due process, procedural due process, and equal protection claims under federal law.” Court found homeowners failed to plead a violation of any federally protected rights, and stated that “[f]ederal courts are not boards of zoning appeals, and constitutional claims arising out of zoning matters are quite narrow.” Federal claims dismissed.
REGULATORY: Includes AMS, APHIS, EPA, ITA, and NOAA rules and notices.
AGRICULTURAL MARKETING SERVICE: Rule implements a recommendation from the Texas Valley Citrus Committee to decrease the assessment rate established for the 2017-18 and subsequent fiscal periods for oranges and grapefruit handled under Marketing Order 906. Details here.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE:
Rule amending the regulations to allow the importation of fresh cherimoya fruit from Chile into the continental United States in accordance with a systems approach as an alternative to the current required treatment. Info here.
Rule proposing to amend the regulations to allow the importation of fresh pummelo fruit from Thailand into the continental United States. Details here.
Notice APHIS is making available for review and comment a revised version of the Chronic Wasting Disease (CWD) Herd Certification Program Standards. Details here.
ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is proposing to approve, under the Clean Air Act (CAA), revisions to Ohio’s state implementation plan (SIP) as requested by the Ohio Environmental Protection Agency (OEPA) on March 10, 2017, and supplemented on July 18, 2017. Info here.
INTERNATIONAL TRADE ADMINISTRATION: Notice Commerce determines that PT Cheil Jedang Indonesia (CJI), an exporter of monosodium glutamate (MSG) from Indonesia, did not sell MSG at less than fair value during the period of review. Details here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS issues regulations to implement management measures described in a framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. Details here.
Rule NMFS is opening directed fishing for northern rockfish in the Bering Sea and Aleutian Islands Management Area. Info here.
Rule authorizes the use of midwater long-leader gear for recreational fishing in waters seaward of a boundary line approximating the 40 fathoms depth contour off the coast of Oregon. Details here.
Rule NMFS is considering amending regulations governing the utilization of purse seine vessel capacity limits associated with the Regional Vessel Register of the Inter-American Tropical Tuna Commission. Info here.
Notice the Mid-Atlantic Fishery Management Council has been preparing an amendment to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan. Details here.